Holliman v. Social Security Administration

Filing 24

OPINION AND ORDER by Magistrate Judge Kimberly E. West : The ruling of the Commissioner of Social Security should be REVERSED and this matter REMANDED for further proceedings.(acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
JOHNNY HOLLIMAN,

)
)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-13-428-KEW

OPINION AND ORDER

Plaintiff Johnny Holliman (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined

that

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and is REVERSED and REMANDED for
further proceedings.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .”

42 U.S.C. § 423(d)(1)(A).
Security

Act

“only

if

A claimant is disabled under the Social
his

physical

or

mental

impairment

or

impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work

which

exists

§423(d)(2)(A).

in

the

national

economy.

.

.”

42

U.S.C.

Social Security regulations implement a five-step

sequential process to evaluate a disability claim.

See, 20 C.F.R.

§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:

This Court’s review is limited to

first, whether the decision was supported by

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Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

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substantial

evidence;

and,

standards were applied.

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“more than a mere scintilla.

It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Richardson

v.

Perales,

402

U.S.

389,

401

(1971)

(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

The

court may not re-weigh the evidence nor substitute its discretion
for that of the agency.

Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “substantiality of the
evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951); see also, Casias, 933 F.2d at 800-01.
Claimant’s Background
Claimant was born on July 24, 1973 and was 38 years old at the
time of the ALJ’s decision.

Claimant completed his high school

education with special education classes.

Claimant has worked in

the past as a construction laborer, bull dozer operator and cattle
worker at a livestock auction.

Claimant alleges an inability to

work beginning July 1, 2010 due to limitations resulting from back

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pain, asthma, depression, and foot pain.
Procedural History
On

October

22,

2010,

Claimant

protectively

filed

for

supplemental security income pursuant to Title XVI (42 U.S.C. §
1381, et seq.) of the Social Security Act.

Claimant’s application

was denied initially and upon reconsideration.

On May 23, 2012,

an administrative hearing was held before Administrative Law Judge
(“ALJ”) Lantz McClain in Fort Smith, Arkansas.

By decision dated

June 27, 2009, the ALJ denied Claimant’s request for benefits. The
Appeals Council denied review of the ALJ’s decision on July 22,
2013.

As a result, the decision of the ALJ represents the

Commissioner’s final decision for purposes of further appeal.

20

C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ made his decision at step five of the sequential
evaluation.

He determined that while Claimant suffered from severe

impairments, he did not meet a listing and retained the residual
functional

capacity

(“RFC”)

to

perform

sedentary

work

with

restrictions.
Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
propound a proper hypothetical question to the vocational expert;

4

(2) failing to properly evaluate the medical and other source
opinions; and (3) failing to perform a proper credibility analysis.
Step Four and Five Analysis
In his decision, the ALJ found Claimant suffered from the
severe impairments of a history of back pain, asthma, hypertension,
history of bilateral foot pain, obesity, and borderline intellectual
functioning.

(Tr. 17).

The ALJ determined Claimant retained the

RFC to perform sedentary work except the ALJ found Claimant needed
to avoid concentrated exposure to such things as fumes, odors,
gases, and poor ventilation.
to simple, repetitive tasks.

Claimant was also found to be limited
(Tr. 20).

After consultation with a vocational expert, the ALJ found
Claimant could perform the representative jobs of assembler and
clerical mailer, which the vocational expert testified existed in
sufficient numbers nationally and regionally.

(Tr. 26).

therefore, concluded Claimant was not disabled.
Claimant

contends

the

ALJ

failed

to

The ALJ,

Id.

include

all

of

his

impairments in posing hypothetical questions to the vocational
expert.

The ALJ found Claimant had a full scale IQ of 84, placing

his overall functioning in the borderline range, mild restrictions
in

activities

of

daily

living,

mild

difficulties

in

social

functioning, moderate difficulties in concentration, persistence,

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or pace, with no episodes of decompensation.

(Tr. 19-20).

These

are known as the “paragraph B” criteria in evaluating a claimant’s
qualification for a listing.

The ALJ referred to this criteria as

“paragraph D” because of the particular listing he was considering.
(Tr. 19).
In his hypothetical to the vocational expert, the ALJ stated
as follows:
Now, Dr. Young, let me ask you some hypothetical
questions, then. Let’s say we had an individual the same
age, education, and vocational history as this Claimant,
who was limited to sedentary work, as described by the
[INAUDIBLE]; could occasionally lift or carry 10 pounds;
frequently lift or carry up to 10 pounds; stand and/or
walk at least two hours in an eight-hour work day, and
sit at least six hours in an eight-hour work day, all
with normal breaks.
Let’s further say this individual needed to avoid
concentrated exposure to such things as fumes, odors,
dusts, gases, and poor ventilation; and, was further
limited to simple, repetitive tasks.
(Tr. 49-50).
Claimant contends the findings in the paragraph B criteria
were required to be included in the hypothetical questioning of the
vocational expert.

The regulations and the case authority in this

Circuit do not support this position.

The social security ruling

on assessing a claimant's RFC cautions that “[t]he adjudicator must
remember that the limitations identified in the ‘paragraph B’ ...

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criteria are not an RFC assessment but are used to rate the
severity of mental impairment(s) at steps 2 and 3 of the sequential
evaluation process.”
specifically

found

Soc. Sec. R. 96–8p.
that

the

failure

to

The Tenth Circuit has
include

a

moderate

limitation in social functioning, for example, in the RFC based
solely upon the finding at step three is not error.
Colvin, 520 Fed. Appx. 748, 754 (10th Cir. 2013).

Beasley v.

The court also

declined the claimant’s invitation to read Franz v. Astrue, 509
F.3d 1299, 1303 n.3 (10th Cir. 2007) as “requiring an ALJ's RFC
assessment

to

mirror

language as “dicta.”

his

step

three-findings,”

finding

such

Id. at 754 n.3.

Claimant cites to the case of Wells v. Colvin, 727 F.3d 1061,
1065 n.3 (10th Cir. 2013) in support of his argument that the
paragraph

B

criteria

hypothetical

questions

limitations
posed

to

must

the

be

included

vocational

footnote simply does not state this position.

in

expert.

the
The

The court found a

mild restriction should have been considered at step two and
subsequent

steps.

It

does

not

require

or

even

suggest

the

inclusion of the restrictions in the questioning of the expert.
This Court finds no error in the hypothetical questioning of the
vocational expert.
Claimant next asserts the ALJ failed to adequately consider

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the same mental restrictions in his RFC.
mental

limitations,

the

ALJ

In assessing Claimant’s

relied

upon

the

consultative

examination of Dr. Denise LaGrand conducted December 12, 2005. Dr.
LaGrand found Claimant was easily understood and was responsive.
His thoughts were organized, logical, and goal-directed and he was
able to stay focused on the exam.

His thought content and

expression during the exam was appropriate. Claimant’s orientation
and contact with reality as well as his abstract reasoning and
emotional control were all appropriate.

Based upon testing,

Claimant’s full scale IQ was 84 although Dr. LaGrand stated that
this was not an adequate representation of his overall functioning,
concluding his vocabulary score indicated Claimant was in the
borderline range.

Dr. LaGrand assessed Claimant’s mental state as

“his ability to perform adequately in most job situations, handle
the stress of a work setting and deal with supervisors or coworkers is estimated to be low average.”
Additionally,

on

March

10,

2011,

(Tr. 218-21).
Dr.

Jimmie

W.

Taylor

conducted a consultative examination of Claimant. He observed that
Claimant exhibited no signs or symptoms of severe depression and
that his mentation and intelligibility of his speech were within
normal limits.

(Tr. 243-44).

On March 15, 2011, Dr. Deborah Carter completed a Psychiatric

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Review Technique on Claimant.

She concluded Claimant had only

“mild” functional limitations in the areas of restriction of
activities of daily living, difficulties in maintaining social
functioning,

and

difficulties

persistence, or pace.

in

(Tr. 262).

maintaining

concentration,

She found credible evidence of

a history of depression but found Claimant’s “mental condition
appears mild and functional limits are not severe.”

(Tr. 264).

In his RFC assessment, the ALJ accommodated Claimant’s mental
limitations in his restriction to simple repetitive tasks. The RFC
is an assessment of the most a claimant can do on a regular and
continuing

basis

despite

his

limitations.

20

C.F.R.

§§

404.1545(a), 416.945(a). It is an administrative assessment, based
on all of the evidence, of how a claimant's impairments and related
symptoms affect her ability to perform work-related activities.
Id.; see also, Soc. Sec. R. 96–5p.

The ALJ properly set forth his

narrative on how his limitations set out in his RFC accounted for
Claimant’s mental impairments.
Within this argument, Claimant also contends the ALJ failed to
accommodate the borderline intellectual functioning found by Dr.
LaGrand.

As stated, the ALJ’s RFC adequately incorporated this

limitation in his functional analysis.
Evaluation of Opinion Evidence

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Claimant recognizes that the ALJ gave “great weight” to Dr.
LaGrand’s opinion but contends he erred in failing to accommodate
her finding of “below average” ability to perform.

This statement

somewhat skews Dr. LaGrand’s actual finding that Claimant’s ability
to perform in a work setting was “low average.”

(Tr. 221).

The

ALJ accepted Dr. LaGrand’s statement and incorporated her findings
in his RFC by limiting Claimant to simple, repetitive tasks.
24).

(Tr.

The ALJ also noted that the “low average” performance in

various work-based functional areas found by Dr. LaGrand were not
explained adequately to place further restriction upon Claimant’s
ability to work.
findings.

Id.

The ALJ did not disagree with Dr. LaGrand’s

However, by giving Dr. LaGrand’s opinion “great weight”

and only accepting one relevant functional finding among many, he
has effectively rejected the remainder of Dr. LaGrand’s opinion.
Certainly, it is well-recognized in this Circuit that an ALJ
is not required to discuss every piece of evidence.
Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996).

Clifton v.

However, he is

required to discuss uncontroverted evidence not relied upon and
significantly probative evidence that is rejected.
An

ALJ

“is

not

entitled

to

pick

and

choose

Id. at 1010.
through

an

uncontradicted medical opinion, taking only the parts that are
favorable to a finding of nondisability.” Haga v. Astrue, 482 F.3d

10

1205, 1208 (10th Cir. 2007).

On remand, the ALJ shall first

proceed through the applicable factors for weighing Dr. LaGrand’s
opinion.

Watkins v. Barnhart, 350 F.3d 1297, 1300 (10th Cir.

2003). Thereafter, he shall consider the totality of Dr. LaGrand’s
opinion

on

functional

limitations

and

provide

specific

and

legitimate reasons for rejecting the other functional limitations
found in the consultative examiner’s report. If Dr. LaGrand should
be recontacted to ascertain the basis for her findings, the ALJ
shall exercise his authority to do so.
Credibility Assessment
Claimant contends the ALJ failed to adequately explain his
discounting of Claimant’s credibility on the level of functional
limitation caused by his condition.

It is well-established that

“findings as to credibility should be closely and affirmatively
linked to substantial evidence and not just a conclusion in the
guise of findings.”
1995).

Kepler v. Chater, 68 F.3d 387, 391 (10th Cir.

“Credibility determinations are peculiarly in the province

of the finder of fact” and, as such, will not be disturbed when
supported by substantial evidence.

Id.

Factors to be considered

in assessing a claimant’s credibility include (1) the individual’s
daily

activities;

(2)

the

location,

duration,

frequency,

and

intensity of the individual’s pain or other symptoms; (3) factors

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that precipitate and aggravate the symptoms; (4) the type, dosage,
effectiveness, and side effects of any medication the individual
takes or has taken to alleviate pain or other symptoms; (5)
treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms; (6) any measures
other than treatment the individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a board);
and (7) any other factors concerning the individual's functional
limitations and restrictions due to pain or other symptoms.
Sec. R. 96-7p; 1996 WL 374186, 3.

It must

Soc.

be noted that the ALJ

is not required to engage in a “formalistic factor-by-factor
recitation of the evidence.”
(10th

Cir.

2000).

The

Qualls v. Apfel, 206 F.3d 1368, 1372

ALJ

detailed

the

bases

for

finding

Claimant’s testimony to be less than credible and made the required
affirmative links to the medical record in a detailed discussion of
the

factual

limitations.

basis

for

rejecting

(Tr. 22-24)

the

extent

of

Claimant’s

This Court finds no error in the ALJ’s

credibility assessment.
Conclusion
The

decision

of

the

Commissioner

is

not

supported

by

substantial evidence and the correct legal standards were not

12

applied. Therefore, this Court finds, in accordance with the fourth
sentence of 42 U.S.C. § 405(g), the ruling of the Commissioner of
Social Security Administration should be and is

REVERSED and the

matter REMANDED for further proceedings consistent with this Opinion
and Order.
IT IS SO ORDERED this

30th

day of March, 2015.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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